Criminal Lawyer Blog

Mid-trial discussions in chambers a no-no ruling

An Ontario Court of Appeal decision that points to the inappropriateness of mid-trial discussions in chambers is a good reminder that this practice should never take place because it "taints the legal process" and breaches an accused person’s right to a fair trial, says Toronto criminal lawyer Matthew Friedberg.

"This decision is an excellent guidepost on how to conduct fair trials," he says.

In R. v. Poulos, 2015 ONCA 182 (CanLII), Justice Harry LaForme of the Court of Appeal says that despite the court’s earlier warnings that any discussion involving trial counsel and the judge in all criminal trials ought to take place in the presence of the accused in open court.

“In spite of the cautions, however, in-chambers discussions without the accused continue to take place,” he writes. “Some of those discussions, as here, canvas ways and means of resolving the trial. For the following reasons, such discussions constitute an error of law for which the appropriate remedy is a new trial. That is to say, where a trial judge in a criminal judge-alone trial initiates discussions with counsel after the commencement of the trial about the possibility of a resolution — in other words, a plea bargain — in the absence of the accused, trial fairness will be compromised such that the curative proviso will not salvage the verdict.”

Friedberg says that once a trial judge is seized with the case, any kind of discussions that have an impact on the matter need to be done in open court in front of the accused.